House Bill (HB) 1147 was filed on January 7, 2020, by Representative Payne. A similar Senate Bill (SB) 1882 was filed on January 13, 2020, by Senator Lee. Those who are familiar with the Florida Legislative process will know that a new law usually requires two bills, one in each chamber. They are each generally referred to committees for consideration. That process is a great feature of the Florida process because anyone can appear at a committee meeting to hear the discussion, and everyday people may sign up to comment on a bill at those meetings.
HB 1147 would add paragraph (3) to section 394.4615, Fla. Stat. This would afford a "service provider" fourteen working days to "furnish clinical records in its possession" following a request. And, the provider would be required to provide them "in paper form or, upon request, in an electronic format." Those providers that maintain and "an electronic health record system" are required to provide the "records in the manner chosen by the requester," and the options "must include electronic format, access through a web-based patient portal, or submission through a patient's electronic personal health record." Thus, the provider that elects to maintain records electronically may be compelled to produce them electronically. Photocopies can create costs, remember What is a Photocopy Machine? back in 2014? (May 2014).
The change may be significant, because section 395.3025(1), Florida Statutes, already provides that charges for "nonpaper records . . . are subject to a charge not to exceed $2." That same section limits the charge for paper records to $1 per page. Thus, a 100-page composite of records kept in paper form could potentially result in a charge of $100.00 compared to the $2.00 charge for an electronic copy (plus a search fee of up to "$1 may be charged for each year of records requested").
HB 1147 would also add new subsections to section 397.501(7), Fla. Stat. This would afford a similar fourteen working day period within which a provider of substance abuse services would have to provide a copy of records. It institutes a similar constraint on those who "maintain an electronic health record," and mandates that such a provider must afford options to the requester as described in section 394.4615. Paragraph (7) would also have a subparagraph requiring such providers to afford record access (for examination) to both requester and "legal representatives." The deadline for providing that access is only 10 working days.
For nursing homes, HB 1147 would amend section 400.145 to require that facilities provide a response to a written request from a resident "within 24 hours, excluding weekends and holidays." The actual copies of those care records would have to be provided "within 2 working days."
The bill would create section 408.833, Fla. Stat. This chapter of Florida Statutes is focused on hospitals, hospices, and other care facilities. This would echo the provisions above regarding the fourteen working day parameter and the constraints requiring that a requester be given the electronic option if the provider maintains an "electronic health record system." There are also changes in the bill where statutes currently require record production "in a timely manner," to the fourteen working day requirement (section 456.057).
There are some reference corrections also in the bill. These are instances in which a law makes reference to another section of the Florida Statutes. As the law evolves and amendments are passed, those referential paragraph numbers and letters can change. Various such references to other statutes are accordingly amended by this legislation.
The overall impact of these changes would seemingly be more rapid access to medical records. The potential for eliminating or perhaps minimizing the use of paper (and the costs and effects of shipping it) is also noteworthy. The limitation of copy costs may have a significant effect on the workers' compensation system, in direct expenditures. And, finally, those who request records and wish to store them digitally will perhaps no longer be faced with the scanning of records produced in paper form.
Since its introduction, HB 1147 has moved expeditiously through the hearing process. It was reported favorably by the Health Quality Subcommittee on January 20, 2020, by the Health Care Appropriations Subcommittee on January 28, 2020, and by the Health and Human Services Committee on February 12, 2020. It was placed on the House of Representatives "second reading" calendar that same day and is awaiting further action on the House floor.
Senate Bill 1882 has not yet been heard by a committee. Upon filing, the bill was referred to the Health Policy Committee and the Judiciary Committee, and the Rules Committee.
Update 02282020: The following counter point was provided by email and is reprinted here with permission:
We recently read your opinion on medical record fee legislation in Florida, House Bill 1147 here.
Ciox Health is a medical record reproduction company that works on behalf of medical providers as a HIPAA business associate and fulfills record requests by entities like health insurers, medical providers, auditors, liability insurers, attorneys, and patients, to name a few. I have represented Ciox Health, formerly known as HealthPort Technologies, since 2012. Ciox is charged with protecting patient privacy under a myriad of state and federal privacy laws while responding to requests for production of records. In order to adequately protect patient privacy and comply with a legal and valid request for records, Ciox must review every page of the record screening out any information that was not authorized to be released by the patient, or that is protected by various privacy laws. Reproducing a medical record is not as easy as pushing a button or copying a file. There is real privacy work being done when a request for records is made. This privacy work is performed by specially trained individuals who undergo regular training and receive periodic updates on everchanging laws, and many times then reviewed by the physician and their attorney. The longstanding business model for this industry has been to charge the requestor for the production of the record. To make the health care providers bear this financial burden would merely increase the cost of healthcare as medical providers primary source of revenue is obtained from providing medical services.
Implementing exorbitantly low fees in law for the reproduction of medical records is devaluing patient privacy and shifting any financial burden back to the patient themselves through the increased cost of healthcare. Please also keep in mind this is not an issue of patient access to medical records. Patients already have a guaranteed right of access to their medical record afforded them under HIPAA. HIPAA even prescribes the fees a medical provider or their business associate may charge a patient for requesting their own record and it should be no surprise the fee is limited to the actual labor involved in copying the record plus any material costs. That is because the patient is entitled to their record without the privacy protections. However, when a patient authorizes an attorney, insurance company, or other third party to obtain a copy of their medical record they do so with certain limitations only permitting the third party to obtain the records typically necessary and related to their relationship and while upholding the aforementioned state and federal privacy laws.
The Board of Medicine spent several years and over 38 public hearings on the adoption of a rule revision for the cost of records. The rule was challenged all the way to the Supreme Court and we participated in the proceedings all the way through the challenges. One item discussed what your reference to electronic, paper, and non-paper records. The rule is very clear that paper and electronic copies of those paper records are the same fee. Non-paper records are historically defined in rule as microfiche and x-rays. Your reference to a $2 charge is for microfiche and x-rays, not the electronic version of a paper record. It is important to note the difference and not confuse the two. There was much discussion on that point during rule adoption that I am sure was not shared with you.
In summary, medical providers and their business associates are the gatekeepers protecting patient privacy and protecting patient privacy is not free or cheap. When a third party who is going to use the record for financial gain requests the record and thereby risks a breach of patient privacy, it is only fair that the third party compensate the provider or business associate for the labor, resources, and materials involved in protecting the patient's privacy before disclosure.
